The opinion of the court was delivered by: Ambrose, Chief District Judge
MEMORANDUM OPINION and ORDER*fn1
Plaintiff Henry L. Wooding ("Wooding") filed an administrative tort claim with the Department of Veterans Affairs ("DVA") pursuant to the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. In that claim, Wooding explained that he had undergone spinal surgery and that his abdominal peritoneum had been breached during such surgery.*fn2 He referenced both a "breach of the proper standards of medical care" and "medical negligence." On March 11, 2005, Wooding's counsel sent a letter to the VA agency wherein he sought to amend that claim. In the letter, counsel for Wooding explained that the physician who had performed the surgery had misrepresented his experience and credentials. On February 1, 2006, the VA issued a denial letter, referencing only the negligence cause of action. Wooding thereafter commenced this action.
I have granted summary judgment in favor of the Government on Wooding's claim for malpractice and Wooding is no longer pursuing his claim of informed consent.*fn3 The only remaining claim is one for misrepresentation. The Government has filed a Motion for Summary Judgment (Docket No. ) with respect to this remaining claim.
As stated above, Wooding contends that Dr. Dirksmeier and the DVA misrepresented Dr. Dirksmeier's training and experience. This misrepresentation, Wooding explains, caused him to "first choose Dr. Dirksmeier as his surgeon and then consent to the June 13, 2001 operation ... that caused him to be seriously injured and impaired." Docket No. 77, p. 1-2. A claim for intentional misrepresentation requires a plaintiff to prove:
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) justifiable reliance on the misrepresentation; and
(6) that the resulting injury was proximately caused by the reliance.
The Government's challenge focuses upon the sixth element - proximate causation. Specifically, the Government argues that Wooding has not proffered any evidence connecting the injuries (injuries arising from the surgery which resulted in a breach to his abdominal peritoneum) to Dr. Dirksmeier's alleged misrepresentations regarding his experience and training. Wooding's counsel conceded at the Status Conference (See Docket No. ) that he did not have any expert testimony linking the injuries to Dr. Dirksmeier's training or experience. He makes the same concession in his Memorandum of Law in Response to Summary Judgment. See Docket No. , p. 4. Wooding's expert, Dr. Conomy, does speak to the nature of Wooding's injuries, but he takes care not to opine that these injuries were caused due Dr. Dirksmeier's inexperience or inadequate training or even because of a lack of supervision over Dr. Dirksmeier.
Wooding counters that such testimony is unnecessary. He urges that "[t]he Court - without any need to rely on any kind of expert - can readily determine whether [the] misrepresentation caused the plaintiff to agree to the Operation." See Docket No. , p. 4. He urges that "[t]he Court can do that because making such a determination is within the well settled exception to situations requiring any kind of expert, because it is within the range of experience and comprehension of even non-professional persons to make such determinations." Id.
I disagree with Wooding. The question before me is not whether the misrepresentation "caused" Wooding to agree to the operation. That really is an issue of reliance - whether Wooding relied upon the misrepresentation. Here, the Government has challenged ...